When I recover a bit more from having finished Dick Cheney’s infernal tome, I will have more to say about it.

But I wanted to point to this piece of news in it that no one has yet noted:

I participated in two lengthy sessions with the special counsel. The first was in my West Wing office in May 2004. The second was in Jackson Hole Wyoming, in August 2004. The second session was conducted under oath so that my testimony could be submitted to the grand jury.(408)

That is, Patrick Fitzgerald interviewed Cheney not just the one time we knew about–on May 8, 2004. But he also interviewed Cheney sometime during August 2004 (at least according to Cheney), apparently in anticipation of submitting that testimony to the grand jury.

The timing of this is pretty telling.

On August 12, 2004, Fitzgerald subpoenaed Judy Miller to testify. And on August 27, 2004, he wrote an affidavit justifying his subpoena, focusing closely on Scooter Libby’s claims that he had been ordered by Dick Cheney to leak material to Miller. And we know from Cheney’s first interview that he hung Libby out to dry, denying any knowledge of such things.

The Vice President does not recall any member of his staff, including Scooter Libby, meeting with New York Times reporter Judith Miller during the week of 7/7/03, just after publication of Joe Wilson’s editorial in the New York Times.

[snip]

The Vice President advised that no one ever told him of a desire to share key judgments of the NIE with a news reporter prior to the NIEs declassification on 7/18/03.

[snip]

The Vice President cannot specifically recall having a conversation with Scooter Libby during which Libby advised the Vice President that he wanted to share with the key judgments of the NIE with Judith Miller. Although if it did occur, he would have advised Libby only to use something if it was declassified. He believed Libby would have told him about any attempts to put something out to the media prior to its declassification and the Vice President cannot recall such a discussion.

When asked if he ever had a conversation with Scooter Libby wherein Libby informed the Vice President that certain material within the NIE needed to be declassified before it could be shared externally, Vice President Cheney advised he does not recall.

To a large degree, Cheney’s first answers–assuming they remained substantively the same in the second interview–necessitated Judy Miller’s testimony, since Libby had clear notes about being ordered to leak material to Miller that had been effectively hidden by his lies about Russert. Libby’s notes made it appear like he might have leaked Plame’s identity to Miller (which turned out to be the case). And Cheney’s refusal to claim he had authorized that leak put Libby at real risk of an IIPA indictment.

This interview raises a few more questions. First, in his first interview, Cheney did not release the journalists he had spoken with from their pledge of confidentiality. Bob Novak testified on September 14, 2004; though Fitzgerald’s affidavit makes it clear much of that discussion was about his conversation with Richard Armitage, Novak spoke with someone at OVP on July 7, 2003, so it has always been possible he was hiding a Cheney conversation.

In addition, Judy Miller explained away the “Aspens connected at the roots” comment by relating a chance encounter with Libby in Jackson Hole in August 2003 (not 2004). Though when I asked her if she had seen Cheney on that same trip, she did not answer. Is it possible the reference to Jackson Hole was a coded reference to Cheney?

Finally–and critically importantly–when CREW FOIAed this interview, they asked for “all transcripts, reports, notes and other documents relating to any interviews outside the presence of the grand jury of Vice President Richard B. Cheney that are part of Special Counsel Patrick Fitzgerald’s investigation into the leak of the identity of Valerie Plame Wilson.” In other words, this second interview would have been squarely within the terms of their request. This interview should have been released under their FOIA, but was not.

This previously unreported Cheney interview would appear to go right to the heart of why Patrick Fitzgerald subpoenaed Judy Miller to find out whether Scooter Libby leaked Valerie Plame’s identity to her. And for some reason, it appears the Bush and Obama DOJ didn’t want us to read it.

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https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2011-10-04 11:49:042011-10-04 12:49:12At About the Time He Subpoenaed Judy Miller, Patrick Fitzgerald Interviewed Cheney a SECOND Time

I would make note that given this new Cheney-provided information, two things stuck out for me:

First, Fitzgerald must’ve considered that obtaining this second interview with Cheney was highly important. There is no way that interrupting a VP’s vacation would be considered the “normal course of business”. The need for the interview must’ve been important otherwise Fitzgerald would have waited for Cheney to return to DC.

I would also imagine that given Cheney’s predilection for avoiding giving anyone even the time of day, there was some uncomfortable back-and-forth between Fitzgerald and the OVP as to why this second interview couldn’t wait until Cheney’s return to DC.

Secondly, the very fact that Cheney himself mentions this in his book makes a statement that Cheney himself considered that this was important. Based on all we know about the man, getting information out of him generally was worse than pulling teeth.

Based too upon what has been reported about Cheney’s book, his well-known reluctant penchant for silence in the face of stuff he doesn’t want to talk about, Cheney’s book must be seen in light of that reluctance, and therefore the inclusion of this information is high on Cheney’s own list of information that he felt needed to get out.

Re: meeting Miller; probably not the week of 7/7.
Re: Told of desire to release NIE; He ordered the release.
Re: Again, Libby did not advise; he was ordered to leak the NIE.
Re: declassification: he told Scooter it would be declassified.

Like many Sophists, Cheney believes a statement is true if one aspect of the statement is true and, conversely, if one part is false, the whole statement is false. This can be mixed and matched to suit one’s purposes.

I would suspect Fitzgerald knew once he had Cheney’s sworn deposition either Cheney or Scooter was going down for obstruction of justice.

IMO…By his deliberate public announcment of a 2nd i’view, Cheney just made Fitz a liar. That 2nd i’view was deliberately hidden, likely by a “deal”. Cheney set-up Fitzgerald and any other party to that “deal” if they agreed later, by lying, to hide the disclosure. There are likely other parties now also vulnerable from having to lie as part of that [hypothecated] “deal”.

The 2nd was “under oath”…what for?, especially in view that mere lying to a gov official is illegal [re Martha Stewart]. On that note,
was the Grand Jury presented with the fact of a 2nd i’view? I doubt the “under oath” was because of a Grand Jury need, but no oath needed for 1st i’view.

Seems Cheney just made a fool of more than 1 gov official who withheld/lied about a 2nd i’view. How could others not have known?

Cheney wouldn’t exist without elite privileges. He probably would still hold a temp union-card from the IBEW* from his summer college work in Wyoming as a gofer “groundsman” [a starter position for apprentices where they cannot do harm to others or themselves].

I think Cheney mentions it for the same reason a rooster crows. He won. Any conceivable statute has run.

I still wonder what was in the declination to Rove (which was never released) and what happened with the supervision/mandate vis a vis Margolis and McNulty, especially give the drips and drabs from the oral argument in Scooter’s case, which inefficiently spent some pretty limited minutes arguing that Fitzgerald didn’t have to go to Margolis to get the authority to file (even though he did go to Margolis – so you have to wonder if he and Walton were really talking about something else and whether or not he could do it without the ok from Margolis or McNulty) and the further dripping in his communications with Congress on the process, where he made the point very directly that his mandate could be changed at any time and without any notice to anyone.

You have to wonder if he wasn’t trying to line something else up and got shut down. But it isn’t very important any more – we’ve found out it doesn’t take a direct VP confrontation to make DOJ cave and allow Executive branch wrongdoing without consequence. Heck, the DOJ is in the lead with solicitations of torture and misrepresentations to courts – a little thing like covering up under oath fibs by a VP would be nothing.

What is the significance of Cheney indicating the second interview was “under oath,” thereby strongly suggesting that the first interview (in May 04, by the FBI) was not under oath?

Was the Jackson Hole interview conducted similarly? Was it Fitgerald only? Was the FBI there too? Surely the logistics of hauling the special prosecutor team out to Jackson Hole, particularly in the throes of the general re-election campaign were pretty darn complicated.

Wasn’t the whole “under oath” thing kind of a trademark? Cheney and Bush (in their joint interview by the 9/11 Commission) also weren’t under oath.

@rkilowatt: Fitzgerald wasn’t at all shy about sharing the President’s information that he had told Cheney to leak NIE to Judy Miller (which gets to the old arguments we’ve had over whether that was insta-declassifying or a NSA violation of inserting classified information into the press for domestic propaganda purposes) in court filings. Generally, you stick with undisputed facts on something like that. If Fitzgerald had an under oath statement from the VP that at all called into question the veracity of what the President told Fitzgerald, you’d have expected at least a footnote (e.g. “While the President remembers this incident the Vice President can neither confirm nor deny that it occured as he has stated that he has no recollection of any such exchange)

Oh well, it is what it is. From the 2006 gift of the House to the 2010 gift of the House and a big Senate margin and the Presidency, Democrats have done nothing on any of these misfeasance in the Executive branch issues other than set up deliberately crippled from the start in-house, non-criminal investigations into things that were not that important in the context of the overall criminality and refuse to function in any effective manner or with any effective follow up and have affirmatively assisted in running out SOLs. It’s not like you can point fingers at Cheney, when the Democrats are the ones who worked so hard to have his actions evade consequences. They all suck hugely and every institution they touch is fouled. I laughed out loud – albeit, not a very mirth filled laugh, when Fitzgerald gave his little speech about torture with the Burge conviction.

Anyway – great catch, as always, EW. Cheney, of course, is not going to be responsible for the DOJ’s failure to accurately and forthrightly respond to CREW’s FOIA request. Like most of this crap, it all walks back to DOJ.

@Mary: “Cheney mentions it for the same reason a rooster crows. He won. Any conceivable statute has run.”

@Mary: …It’s not like you can point fingers at Cheney, when the Democrats are the ones who worked so hard to have his actions evade consequences. They all suck hugely and every institution they touch is fouled…

Anyway – great catch, as always, EW. Cheney, of course, is not going to be responsible for the DOJ’s failure to accurately and forthrightly respond to CREW’s FOIA request. Like most of this crap, it all walks back to DOJ.

Bush’s interview with Fitzgerald on June 24, 2004 was one where Bush, accompanied by a private lawyer (James E Sharp), was not placed under oath, according to the Post (Bush Interviewed About CIA Leak, Susan Schmidt, June 25, 04). Gonzo testified in front of the GJ on June 18 (presumably under oath). Yep, sounds like Fitz had to come back to Dick a second time and square some loose ends from interview #1.

I just realized this means I have to go back and look at the email searching that was done in 2004. Now that we know that Fitzgerald went back to interview Cheney in August 2004, we might be able to draw new conclusions from the particular searchs that were done between May and August 2004.

So, we have Darth trying to re-write the narrative for legacy purposes, but as I have noted before, someone just might be PO’d enough to let the geezer have it. And, since Fitz is a rugger, I’m guessing that just might be him, since shameless backstabbing doesn’t sit well with us. All we need is a ruck to get vengeance, if y’all get my meaning.

This is why bipartisanship doesn’t work now, you can’t make deals with dishonorable people.

@rugger9: Just connected rugger with rugby. Thought of Nando Parrado’s survival in Andes plane crash*.and his admonition to mates after discivery of selfish food hoarding…[paraphrase]Without fairness, there will be chaos and no chance to survive. [
* Miracle in the Andes, Parrado’s account of 1971 crash/survival of a Uruguay rugby team.

Not sure if the dates that the Defense entered exhibits has anything to do with what Cheney did or did not discuss with Fitzgerald in the August 2004 ‘under oath’ second conversation, but Defense entered

DX 816 — Cooper’s Notes on Conversation with Libby, August 23, 2004

(and I have to say, without that title, reading the exhibit is confusing. I cannot remember when Cooper would have been taking these notes so I cannot tell what information would be helpful for the defense)

Also not sure of the timeline: would this Defense entry have been the trigger for Fitzgerald to demand the second conversation? or does the timing suggest the Defense entry could be in response to Cheney’s second conversation?

Interesting (to me, at least) that this second interview wasn’t uncovered in James Stewart’s book Tangled Webs. It sure seemed like Fitzgerald must have been a source for that book, but I guess he didn’t want to reveal all. Tangled Webs did mention how Fitz and Eckenrode were irritated and befuddled by Cheney’s (first) interview because it was so clear he was dodging and obfuscating.

This excerpt of CREW’s complaint against EOP/OA/NARA, starting on page 11, nicely reviews the email archiving problem that began in 2002 in the WH. Helpful for readers new to the topic:

FACTS GIVING RISE TO PLAINTIFF’S [CREW] CLAIMS FOR RELIEF

31. In 1994, the EOP [Executive Office of the President] implemented the Automated Records Management System (“ARMS”) for White House e-mails. ARMS was an electronic records management system that automatically captured, preserved and categorized all e-mail sent through the White House e-mail system. ARMS was used to archive both records subject to the FRA [Federal Records Act] as well as records subject to the PRA [Presidential Records Act] and was able to segregate, categorize and archive each type of record separately. ARMS also had certain controls in place to maintain the security of the archival system, which prevented the accidental or intentional deletion of e-mails.

32. In 2002, the EOP discontinued use of the ARMS automatic archiving system. The EOP did not replace ARMS with any system for automatically preserving White House e-mails or for separately categorizing and archiving federal and presidential electronic records. Furthermore, because no other electronic records management system was installed in place of ARMS, there were no longer in place any controls to ensure the continued preservation of e-mails. As a result, since 2002, it has been possible for any e-mails housed on the White House servers to be manually deleted by anyone who has access to the servers.

33. All components of the White House operate on the same shared environment and not on separate servers differentiated by function of the component, with the possible exception of certain classified electronic documents that may be managed separately. With the abandonment of ARMS, federal records and presidential records are no longer automatically categorized. Thus, since 2002, federal record and presidential record e-mails exist in commingled form on the servers and back-up tapes.

EPU’d – it sounds as if the second “interview” being under oath, might have been more in the nature of a deposition and/or direct testimony for the GJ. Someone might have used that as the wiggle room to not include anything (even a statement as to why it wasn’t being turned over) in the FOI response. If it was taken for the GJ, as Cheney indicates, it would also have been a way to avoid having to deal with all the issues of trying to have Cheney appear before the GJ to testify.

@Mary: Agree, that may be part of it. Plus when Steven Bradbury responded to the CREW FOIA, it pretended that CREW had FOIAed the subset of the Oversight subpoenaed documents that pertained to Cheney. Oversight, but not CREW, used as subset the docs Fitz said could be released.

@Mary: If special counsel Fitz has either the original or a copy of the transcript, and you know he does, even if it is direct Rule 6 material as you hypothesize, should that not still appear on the Vaughn index of items found but not produced?

Yep, but it is not secret anymore, and Cheney himself has opened the door and waived any secrecy interest HE has. At a minimum, that ought to get us the facts on how it got disappeared, if not the contents.

“Erin Burnett is about to take over CNN’s 7pm spot, and everyone is happy about it. On Tuesday night, the top brass from CNN tossed Erin quite a lovely pre-debut gala at Robert restaurant on Columbus Circle that was so packed with important peeps that it was almost frightening. My favorite moment: talking to Daily News publisher Mort Zuckerman and journalist Judith Miller, when all of a sudden a man arrived bringing Zuckerman a glass of liquid refreshment from the bar. It was none other than JP Morgan chief Jamie Dimon, who’d volunteered to snake through the packed room and return with beverages. How incredibly helpful!”

@bmaz:
Which gets me back to Fitz. He’s a straight arrow from what I can see, and I’m not convinced he would stay quiet much longer if Darth keeps poking him with his book. All it would take is the release of the full testimony, and I’m quite certain that “inconsistencies” would emerge. As far as I know, Fitz isn’t ego-driven, but neither is he a welcome mat and he’ll hit the point where he’s had enough.

Why is Darth really doing this now, risking legal entanglements? Assuming Obama wins in 2012, he’d have no reason to play nice any more with the GOP. Maybe that’s part of why he’s been “looking forward, not backward”.

Sorry, Marcy, that you’ve had to suffer through Chaney’s book. However, ever since it was published, yours is the one review I have eagerly awaited. It’s also the one he should most dread, if he, in fact, dreads anything, which I doubt.

@bmaz: I think it should have been, but that’s where I’m wondering about the wiggle room.

If the request was:
“all transcripts, reports, notes and other documents relating to any interviews outside the presence of the grand jury of Vice President Richard B. Cheney that are part of Special Counsel Patrick Fitzgerald’s investigation into the leak of the identity of Valerie Plame Wilson”

where are the wiggle points? Maybe one might be the “outside the presence of the grand jury” if the interaction was deemed to be direct testimony being provided to the grand jury? Even if being provided outide the GJ meeting room (to prevent all the media issues that would result from walking the VP into the GJ room) I don’t think that flies, but I see it as a wiggle point. Heck, if it was under oath, maybe it was even provided to the GJ by remote feed and wasn’t “outside the presence of” the GJ? Still, I would think it has to be on the index.

Another wiggle point would be the existence of the transcript. If someone at DOJ told Fitzgerald he couldn’t use it or even had to destroy it, then maybe it wasn’t in existence for the indexing. Also, if there wasn’t much coordination and if the transcript itself was in constructive court custody as a part of a sealed proceedings, maybe that would be at issue?

Another wiggle point would be the description of investigation into the leake of VP’s identity. If, since the transcript apparently just had Dick saying he didn’t remember anything, it was not being generated in connection with a determination of the leak of VPs identity per se, but rather in connection with investigation into false statements from the VP to federal agents, possibly a wiggle. As you know, there’s a reason we get pages long on description requests.

From what we have, do I see any “good” wiggles that should get someone around at least describing the non-produced item? Not really. The best options would be the transcript being a part of a sealed motion and no longer in the custody of the DOJ to produce, or the transcript having been destroyed. You would normally think that Fitzgerald is going to have a copy, though. The problem with the two options in this paragrage (destroyed/sealed motion) is that they could tie into some of my groundless spec on someone stepping in to cut off Fitzgerald on the VP and Rove and so I don’t want to dwell on them bc I have that bias to want to make them fit.

Re: waiver – I think if Cheney was discussing his interactions with the President, you’d still have to get a waiver from the President. But Bush probably gave at least a de facto if not even a de jure waiver by being interviewed and answering questions himself about the exchanges. OTOH, if the DOJ (McNulty or Margolis – I don’t think anyone ever nailed down whether the assignment to Margolis went back to McNulty when McN came in)asserted it’s right to control the proceedings after the Libby filing and the transcript ended up as part of a sealed proceeding, then you have the issue of the court’s ruling as well. Waiver of secrecy by a party doesn’t unseal a judiciailly sealed record.

I don’t know. I’ll defer to you guys who have fed lit experience. I think this one is pretty darn interesting, though.

Any inquiry to or response from Fitzgerald’s office as to the revelation that the VP was interviewed under oath for the GJ proceeding or that this transcript was not released to CREW or even listed on the Vaughn index?

@31 – and a big part of the problem is found here: “Plus when Steven Bradbury responded …” What was his designation at that time, btw? Was he acting at OLC? Doesn’t seem like that would be the typcial office to handle the response. I’m sure you can get a fair and forthright answer from Mr. Brandbury.

Well, I don’t know exactly either what they did or how they did it. I am pretty sure Rule 6 is in the chain somehow, but who knows exactly how? I think we are going to try to find out though; that much I know.

“all transcripts, reports, notes and other documents” reads to me like hard copy (written) paper. I am not even aware of how “documents” is defined in the law these days…but, could it be that if the information was on electronic media, then that provided the wiggle room?

He hangs around with a crowd that relishes unlawful behavior and do everything within their power to glorify it as well as step up to vigorously defend the perps from justice.

Exhibit A — Scooter kicks sand for Uncle Dick….

Q. And it’s your recollection that when Mr. Russert I
told you on or about July 10th that Wilson’s wife worked at
the CIA, that struck you as a new fact, you had no
recollection of any prior conversations with other people
concerning Wilson’s wife working at the CIA. Correct?
A. That’s how I recall it, sir.

In the senatorial elections of 1900 all the notable “Dreyfusards” (Ranc, Siegfried, Thévenet) were not elected; it was only at the legislative elections of 1902 that the tide began to turn and some of the champions of revision (Pressensé, Jaurès, Buisson) were returned to the Chamber of Deputies.

Obama enjoys too much the legacy Cheney’s executive expanse to be much interested in “trust busting” and an effective democratic Congress with platform engaged in embracing stable constitutional principles against the sophisticated expedient lies in the service of the power of men seems remote.